Butler v. State

• Decision Date: 16 August 2000
• Docket Number: No. 4D98-1819.,4D98-1819.
• Citation: 767 So.2d 534
• Parties: Philip BUTLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

767 So.2d 534

Philip BUTLER, Appellant, v. STATE of Florida, Appellee.

No. 4D98-1819.

District Court of Appeal of Florida, Fourth District.

August 16, 2000.

Rehearing Denied October 3, 2000.

LueAnne Goodine Butler, Greeneville, Tennessee, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

SCOLA, ROBERT N., Jr., Associate Judge.

In this appeal from his convictions for bribery, conspiracy to commit bribery, and accepting illegal campaign contributions, appellant has raised one ground that merits discussion: whether the trial court erred by failing to conduct a Faretta¹ inquiry before allowing appellant, an experienced criminal defense attorney, to represent himself in the proceedings below. We find under the facts of this case that there was no error and, therefore, affirm.

I.

In 1996, appellant, Philip Butler, a criminal defense attorney with twenty-five years experience, ran unsuccessfully for the position of State Attorney for the Fifteenth Judicial Circuit in and for Palm Beach County. During the campaign, Butler approached a wealthy former client who was charged with DUI Manslaughter and assured him that if he assisted Butler in winning the election, Butler would make sure the client would never spend a day in jail. The client and his family then paid over $500,000 in cash and checks to Butler and his accomplice to be used for the campaign.

Butler was later arrested and charged with bribery, conspiracy to commit bribery, and several counts of accepting illegal campaign contributions. He filed a formal, written notice of appearance on behalf of himself which included a written plea of not guilty, waiver of arraignment, and demand for jury trial. He later filed and litigated numerous motions with attached legal memoranda raising various discovery, evidentiary, procedural, and constitutional issues.²

There were several court appearances prior to trial during which Butler appeared on his own behalf. Neither the trial court nor Butler raised the issue of his self-representation before the trial. The case ultimately proceeded to a jury trial during which Butler continued to represent himself. At the conclusion of the trial, Butler was convicted of bribery, conspiracy to commit bribery, and several counts of receiving illegal campaign contributions.

Five days after the verdict, while representing himself, Butler filed a motion for a new trial alleging, inter alia, that the court erred by failing to conduct a Faretta inquiry to determine if he had knowingly waived his right to counsel. The trial court entered a written order denying the motion and found that Butler was a highly-skilled and experienced criminal defense attorney who was well aware of the dangers of self-representation. Butler had given a statement to investigators in which he stated that he had appeared fifteen to twenty times before the Florida Supreme Court, more than one hundred times before district courts of appeal, and that he had twenty-five years of experience as a criminal trial attorney. The trial court found further that Butler was the attorney of record in Kleinfeld v. State, 568 So.2d 937 (Fla. 4th DCA 1990), in which he successfully raised a Faretta claim before the Fourth District Court of Appeal. The court also noted that Butler was seeking the position as the head of criminal prosecutions for the entire Fifteenth Judicial Circuit.

II.

The first issue we must decide is whether Faretta and its progeny are even implicated in a case where the defendant is an attorney—particularly an experienced criminal defense attorney. As discussed in Judge Klein's specially concurring opinion, a compelling argument can be made that Faretta does not apply because the defendant was represented by competent counsel of his choice—himself. Thus, no waiver of counsel would have been necessary, since the defendant did have counsel. Indeed, the landmark case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), was not about the right of a defendant in a criminal case to be represented by counsel; it was about a defendant's right not to be represented by counsel and to be allowed the right of self-representation. In Faretta, the defendant had been denied the right to represent himself under state law and was compelled to accept the services of an attorney. In establishing the right of an accused to represent himself, the United States Supreme Court stated:

[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who must be "confronted with the witnesses against him," and who must be accorded "compulsory process for obtaining witnesses in his favor." Although not stated in the Amendment in so many words, the right to self-representation—to make one's own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

... The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master, and the right to make a defense is stripped of the personal character upon which the Amendment insists.

Faretta, 422 U.S. at 819-20, 95 S.Ct. 2525 (footnotes omitted).

While establishing that a defendant in a criminal case has a constitutional right to self-representation, Faretta also recognized that such a choice involves the relinquishment of "many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must `knowingly and intelligently' forgo those relinquished benefits." 422 U.S. at 835, 95 S.Ct. 2525 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

No Florida court has addressed the issue of self-representation by an attorney-defendant. However, courts in other jurisdictions which have done so have held that the accused, even though an attorney, is entitled to counsel and must knowingly and intelligently forgo the right to counsel. See United States v. Maldonado-Rivera, 922 F.2d 934, 977 (2d Cir.1990); United States v. Campbell, 874 F.2d 838 (1st Cir. 1989); Neal v. State, 689 S.W.2d 420, 426 (Tex.Crim.App.1984); Neal v. State, 870 F.2d 312 (5th Cir.1989).

We agree with those cases and hold that Faretta does apply to an attorney-defendant who represents himself and that it must be established that the attorney-defendant knowingly and intelligently waived the right to counsel. However, the defendant's status as an attorney may be considered by the court in determining whether a valid waiver was made in the absence of a complete Faretta inquiry by the court. Cf. United States v. Friedman, 854 F.2d 535 (2d Cir.1988) (defendant's experience as an attorney was found to be relevant in determining whether he knowingly and intelligently waived a conflict of interest with his attorney).

In Campbell, the defendant, a criminal defense attorney, represented himself at trial and was convicted. On appeal, he contended that the court erred in failing to conduct a Faretta inquiry and by failing to make findings on the record of his knowing and intelligent waiver of counsel. In affirming, the First Circuit held that the trial court's failure to make specific findings of fact prior to allowing the defendant to represent himself was not error:

[w]hile we believe such on the record findings are almost always wise, they are not mandated. ...

... [T]o assess the validity of a waiver of right to counsel, we look to "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." If there is some "`affirmative acquiescence' in the arrangements at trial, the burden falls on [the defendant] to show that his `acquiescence was not sufficiently understanding and intelligent to amount to an effective waiver.'"

We believe the totality of the evidence shows that Campbell knowingly and intelligently waived his right to counsel. Campbell was a member of the Maine Bar and had tried numerous criminal cases in both state and federal court. We think it highly improbable that one with such experience in the criminal justice system and knowledge of the law could be ignorant of the effect of a waiver of legal representation.

Campbell, 874 F.2d at 845-46 (emphasis added) (citations omitted)(quotations omitted).

In Maldonado-Rivera, the attorney-defendant similarly complained that the failure to conduct a formal Faretta hearing should result in a new trial. In affirming, the Second Circuit stated, "Maldonado's statements and conduct throughout the proceedings reflected his familiarity with the workings of the legal system and with the options legally available to him." Maldonado-Rivera, 922 F.2d at 977. The court found he had experience in criminal cases, had previously represented a codefendant, had filed a waiver of appearance, successfully moved to dismiss certain counts of the indictment, presented defense witnesses, and gave a summation that resulted in his acquittal on another count. The court thus determined that, "[i]n all the circumstances, we cannot say that the court erred in failing to perform an explicit on-the-record inquiry into this defendant's waiver of the right to be represented by counsel." Id. at 978.

In Neal, the defendant was charged with official misconduct during his...